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Pilgrim v. Workers' Compensation Appeal Board2/1/2002
SUBMITTED: April 20, 2001
OPINION NOT REPORTED
Eric Pilgrim appeals pro se the Workers' Compensation Appeal Board's (Board) denial of his petition for a rehearing regarding the termination of his benefits. Due to Pilgrim's failure to properly preserve any issues for review, we affirm.
On October 27, 1998, a Workers' Compensation Judge (WCJ) terminated Pilgrim's total disability benefits, effective October 13, 1997. Pilgrim appealed the termination and the Board affirmed in February 2000. Shortly
thereafter, Pilgrim filed a pro se petition with the Board, seeking a rehearing on the basis that his attorney failed to tell him that employer had offered to settle his claim for $150,000 and that the medical testimony relied upon in supporting the termination of benefits contradicted the testimony of Pilgrim's examining doctors.
The Board denied Pilgrim's request for a rehearing, concluding that Pilgrim's assertion of attorney misconduct was unsubstantiated and not a basis to grant a re- hearing. The Board also noted that the alleged misconduct did not impair Pilgrim's opportunity to present a defense to the termination petition. Finally, the Board held that the differences in opinions between the expert witnesses did not warrant a rehearing. The present appeal followed.
On appeal, Pilgrim raises two issues for our review, namely, whether the Board abused its discretion in failing to grant him a rehearing because (1) his attorney failed to inform him of a settlement offer extended in February 1998 (prior to the WCJ's order terminating his benefits), and (2) the expert witness, which was credited by the WCJ in terminating his benefits, was biased since he testified that Pilgrim suffered from a rare disease that other medical professionals failed to diagnose. Due to the fact that Pilgrim has failed to preserve either issue for appeal in his petition for review, we conclude that both issues are waived. See Pa. R.A.P. 1513(a). See also North Hills Passavant Hosp. v. Department of Health, 674 A.2d 742 (Pa. Cmwlth. 1996); McGrath v. State Bd. of Dentistry, 632 A.2d 1027 (Pa. Cmwlth. 1993).
Assuming arguendo that the issues had been properly preserved, we would conclude that the Board did not abuse its discretion in refusing to grant Pilgrim a rehearing. Pursuant to Section 426 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 871, a rehearing is granted upon "cause shown." This court has observed that the Board "has broad powers to grant a rehearing and is mandated to do so when justice requires." Dominijinni v. Workmen's Compensation Appeal Bd. (DeCarlo), 581 A.2d 245, 247-48 (Pa. Cmwlth. 1990). Furthermore, cause for a rehearing has been demonstrated when there has been ineffective counsel, a misapplication of law due to a subsequent court decision, a denial of an opportunity to present a defense or newly discovered evidence. Id. at 248.
Here, while the claim that counsel failed to convey an offer of settlement may allege a breach of ethics and even malpractice, it does not state a claim for ineffectiveness that requires a rehearing on the merits of the termination petition. Moreover, it is clear that the allegations of error do not fall within the other categories mentioned that would justify the grant of a rehearing. Therefore, even if properly preserved for review, Pilgrim's contentions do not demonstrate an abuse of discretion on the part of the Board in denying his request for a rehearing.
BONNIE BRIGANCE LEADBETTER, Judge
ORDER
AND NOW, this 1st day of February, 2002, the order of Workers' Compensation Appeal Board in the above cap
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